RepublicvsCantor

FACTS: The respondent and Jerry were married on September 20,

1997. They lived together as husband and wife in their conjugal
dwelling in Agan Homes, Koronadal City, South Cotabato.
Sometime in January 1998, the couple had a violent quarrel
brought about by: (1) the respondents inability to reach "sexual
climax" whenever she and Jerry would have intimate moments;
and (2) Jerrys expression of animosity toward the respondents
father.
After their quarrel, Jerry left their conjugal dwelling and this was
the last time that the respondent ever saw him. Since then, she had
not seen, communicated nor heard anything from Jerry or about his
whereabouts.
On May 21, 2002, or more than four (4) years from the time of
Jerrys disappearance, the respondent filed before the RTC a
petition4for her husbands declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a
well-founded belief that Jerry was already dead. She alleged that
she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail.
In the hopes of finding Jerry, she also allegedly made it a point to
check the patients directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile,
prompting her to file the petition in court.
ISSUE: W/N the petition for the declaration of presumptive death
should be granted
RULING: NO. Before a judicial declaration of presumptive death
can be obtained, it must be shown that the prior spouse had been
absent for four consecutive years and the present spouse had a

well-founded belief that the prior spouse was already dead. Under
Article 41 of the Family Code, there are four (4) essential
requisites for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid down
in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the
absentee is dead; and
4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee
Notably, Article 41 of the Family Code, compared to the old
provision of the Civil Code which it superseded, imposes a stricter
standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death
can be granted.
In the case at bar, the respondents "well-founded belief" was
anchored on her alleged "earnest efforts" to locate Jerry, which
consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws,
neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked
through the patients directory, hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and
degree of diligence required by jurisprudence for the following
reasons:
First, the respondent did not actively look for her missing husband.
It can be inferred from the records that her hospital visits and her

consequent checking of the patients directory therein were

unintentional. She did not purposely undertake a diligent search for
her husband as her hospital visits were not planned nor primarily
directed to look for him. This Court thus considers these attempts
insufficient to engender a belief that her husband is dead.
Second, she did not report Jerrys absence to the police nor did she
seek the aid of the authorities to look for him. While a finding of
well-founded belief varies with the nature of the situation in which
the present spouse is placed, under present conditions, we find it
proper and prudent for a present spouse, whose spouse had been
missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerrys relatives or their
neighbors and friends, who can corroborate her efforts to locate
Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present
spouses bare assertion that he inquired from his friends about his
absent spouses whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the
testimony nor presented as witnesses.
Lastly, there was no other corroborative evidence to support the
respondents claim that she conducted a diligent search. Neither
was there supporting evidence proving that she had a well-founded
belief other than her bare claims that she inquired from her friends
and in-laws about her husbands whereabouts. In sum, the Court is
of the view that the respondent merely engaged in a "passive
search" where she relied on uncorroborated inquiries from her inlaws, neighbors and friends. She failed to conduct a diligent search
because her alleged efforts are insufficient to form a well-founded
belief that her husband was already dead.